In these times when “strong headwinds” are blowing against the European culture of fundamental rights and the rule of law (see P. Pinto de Albuquerque), the principles of mutual recognition and mutual trust on which judicial cooperation in the EU is based have come under pressure. The CJEU and the ECtHR are increasingly called upon to address the phenomenon of “rule of law backsliding” and to strongly defend these common values.

The recent preliminary reference submitted by the High Court of Ireland in case C-216/18L.M. fits into such trend. It concerns the possibility to refuse the execution of three European Arrest Warrants issued by Polish courts against an individual, L.M., on account of the potential violation of the right to a fair trial ensuing from the latest controversial reforms of the judiciary in Poland. According to the Commission’s reasoned proposal to activate for the first time in history the procedure of Art. 7 TEU, which recently found the endorsement of the European Parliament calling on the Council to take action swiftly, the said reforms resulted in a breach of the rule of law due to, essentially, a lack of sufficient guarantees of external independence of the judiciary at all levels. Even though the application of the Framework Decision on the EAW can be suspended only after a Council’s decision under Art. 7 (1) TEU has been adopted (Recital 10 of the Framework Decision on the EAW), it is nonetheless inevitable that such circumstances may – from the viewpoint of the person subject to an EAW issued by Poland – entail a serious risk of breach of the right to a fair trial. The CJEU now has thus the opportunity to clarify whether an alleged lack of judicial independence amounts to a breach of the right to a fair trial that calls for the refusal to execute an EAW, as an exception to the principle of mutual trust.

The Commission established OLAF (Office de Lutte Anti-Fraude), an administrative investigative service of the Commission, in 1999, in the wake of the fall of the Santer Commission, to strengthen the fight against illegal activities affecting the Union’s financial interests. One of the shortcomings in OLAF’s legal framework on the conduct of on-the-spot inspections, one of the service’s main investigative powers, is that it refers back to national law at various instances, requiring OLAF to cooperate with national authorities which operate on the basis of national law. A question that has lingered in academic circles for some time is when precisely – and to what extent – national law applies. In the recent Sigma Orionis case the General Court shed light on this issue. The General Court’s solution has been embraced by the Commission in its recently published proposal to amend the rules which govern OLAF’s investigations. The Commission´s proposal, as a result of the Court´s judgment, places OLAF shoulder to shoulder with other Union bodies – at least when it comes to the applicable law – in the business of enforcing Union law by means of inspections. Continue reading →

On April 19, 2018 the Court of Justice made an important clarification to the understanding of Article 102 TFEU with a judgment in case C-525/16 MEO – Serviços de Comunicações e Multimédia SA v Autoridade da Concorrência. This judgment, in which the CJEU followed the detailed Opinion of Advocate General Wahl, is important for at least three reasons: first, it clarifies the substantive scope of point (c) of Article 102 TFEU, which prohibits dominant firms from “applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage” (my emphasis); second, building on previous case law such as Post Danmark II and Intel, it provides guidance on the law of abuse of dominance in general; third, its conclusions could be significant for a particular kind of undertakings, namely holders of standard-essential patents (SEPs). Continue reading →

In its much-awaited judgment in Coman, delivered earlier this month, the Court of Justice ruled that the term ‘spouse’ for the purpose of the grant of family reunification rights under EU free movement law, includes the same-sex spouse of a Union citizen who has moved between Member States. This means that in such situations, the Union citizen can require the State of destination to admit within its territory his/her same-sex spouse, irrespective of whether that State has opened marriage to same-sex couples within its territory.

This is a landmark ruling of great constitutional importance which has the potential of changing the legal landscape for the recognition of same-sex relationships within the EU. It is, also, a judgment which is hugely significant at a symbolic level, as through it the EU’s supreme court made it clear that it considers same-sex marriages as equal to opposite-sex marriages, in this way reversing the discriminatory stance it had adopted in the early 00’s, when it ruled in D and Sweden v. Council that ‘[i]t is not in question that, according to the definition generally accepted by the Member States, the term marriage means a union between two persons of the opposite sex’.

In the recent years the Court of Justice of the European Union, has pronounced twice about physical requirements as a matter of discrimination. The first case – Kaltoft (C-354/13)– concerned obesity and was briefly annotated on European Law Blog. The present commentary will look into another case from the Union’s Court – Kalliri (C-409/16) – this time regarding discrimination based on height requirements. While it is usually excessive rather than low weight that causes discrimination, height entails a contrary correlation. By now, rich studies about stature in psychology and sociology unequivocally show that shorter people are more likely to face discrimination than their taller compatriots, with employment patterns often imitating biological dispositions about size amongst animals. Social hierarchies are, thus, clearly height-bound, permeating our public image, wages, choice of work partners and even success of presidential candidates.

What the present case of Kalliri (2017) illustrates in addition is that the stigma of short stature in employment has particular repercussions for women. Ms. Maria-Eleni Kalliri brought a complaint in front of the administrative court in Greece regarding the rejection of her application for police training due to insufficient height. The default height requirement for such applicants under Greek rules was 170 centimeters for both men and women. Ms. Kalliri fell short of this criterion by 2 centimeters and therefore complained that her dismissal was a matter of gender discrimination, since men are on average more likely to satisfy this requirement. While the lower tribunal found this to be discrimination, a higher Greek court requested a preliminary ruling from the Luxembourg court on whether the height requirement indeed constitutes sex discrimination under EU law. Continue reading →

The much awaited Company Law Package was finally published by the European Commission on April 25. It aims to establish “simpler and less burdensome rules for companies” regarding incorporation and cross border transactions and consists of two proposals.

Proposal 2018/0113 intends to promote the use of digital tools and procedures in company law. Member States will need to allow a fully online procedure for the registration of new companies and of branches of other companies, that permits the incorporation without the physical presence of the members before any public authority. To avoid fraud and abuse the proposal “sets safeguards against fraud and abuse such as mandatory identification control, rules on disqualified directors and a possibility for Member States to require the involvement of a person or body in the process, such as notaries or lawyers”. The proposal also establishes the need to offer free access to the most relevant information of companies in the Companies Registers. This proposal will require important changes in national legislations and its implementation will be a technological challenge for the Member States that want to preserve the present level of control in the incorporation of companies. The question of online identification will undoubtedly be of special interest and complexity.

This first proposal certainly deserves more detailed examination. However, to keep this post short, I will concentrate here on the second proposal (2018/0114) regarding cross-border conversions, mergers and divisions. Continue reading →

On 8 May 2018, with the judgment in K.A. and others vs. Belgium, the Court of Justice of the European Union (ECJ) has added another piece to the now quite big puzzle that surrounds the legal status of EU citizens (and their third country family members). It ruled that Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a third country national solely on the basis of an existing entry ban against the third country national. The Court argued that if the refusal compels the EU citizen to leave the territory of the EU as a whole, it deprives EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Like in the Zambrano case, the EU citizens in K.A. had never exercised their right to free movement.

Just a quick reminder of the Court’s main findings in Zambrano: In that case, Belgium had denied a right of residence to a Colombian father of two Belgian minors. The Court held that, by not giving the father of a Belgian child a derived residence right, Belgium will oblige the child to leave the territory of the EU as a whole, and therefore deprive the child of the genuine enjoyment of the substance of the rights’ conferred by the EU citizenship status. It was argued – and here is the revolutionary aspect – that this even applies in purely internal situations, e.g. where the EU citizen has never exercised his or her right to free movement. Normally, EU law only applies in situations with a cross-border element. Continue reading →

EU Criminal Law after Lisbon. Rights, Trust and the Transformation of Justice in Europe, by Valsamis Mitsilegas, Oxford and Portland, Oregon, 2016, 295 p.

This monograph examines the impact of the entry into force of the Treaty of Lisbon on EU criminal law. By focussing on key areas of criminal law and procedure, the book assesses the extent to which the entry into force of the Lisbon Treaty has transformed European criminal justice and evaluates the impact of post-Lisbon legislation on national criminal justice systems.

After a very short first introductory chapter presenting the objective and the scope of the monograph, the second chapter – which is in effect the first substantive chapter – sketches the general changes the Lisbon treaty has brought about for the competence of the EU in the field of criminal law, which it characterises as the ‘constitutionalisation of EU criminal law’. The chapter however also discusses the few remaining reminiscences to the former third pillar and argues that these can be traced back to fears of some member states during the Lisbon Treaty discussions of a loss of legal diversity of their criminal justice systems. The chapter also focusses on the post-Lisbon legal basis debate in the field of criminal law, by critically analysing the Kadi II (C‑584/10 P, C‑593/10 P and C‑595/10 P) case-law of the ECJ. It discusses the principle of subsidiarity in the context of EU criminal law and analyses the specific positions of the United Kingdom, Ireland and Denmark as well as the problems these specific positions entail for the effective application and coherence of EU criminal law. Continue reading →

On 12 April 2018 the Court of Justice of the EU (hereinafter, the “Court”) delivered a key ruling in A & S (case C-550/16), which hopefully marks a conscious step towards the creation of an effective EU system for the protection of children in migration.

As the Commission points out, the protection of children in all stages of migration should be “first and foremost about upholding European values of respect for human rights, dignity and solidarity. It is also about enforcing European Union law and respecting the Charter of Fundamental Rights of the European Union and international human rights law on the rights of the child” (COM (2017) 211 final). Yet their vulnerability is often denied or forgotten by Member States, especially in the mist of the so-called ‘migratory crisis’.

A & S brings forward the issue as to whether a Member State can deny both the status of being a child and the corresponding protection under EU law to a young refugee who entered its territory as an unaccompanied minor and turned eighteen while waiting for their application for international protection to be processed. In particular, could Member States be left to ‘use’ delays in the processing of children’s applications for the refugee status as a mechanism to thwart their fundamental right to family reunification?

In its children’s rights centred ruling, the Court made clear that Article 10 (3) (a) of Family Reunification Directive (Directive 2003/86/EC) creates an enforceable right to unaccompanied minor refugees to be reunited with their parents; a right which cannot be thwarted by the ‘negligent’ behaviour of the national authorities. In particular, an unaccompanied child who has turned eighteen while waiting for their refugee status application to be processed should still be considered as an ‘unaccompanied minor’ and therefore be entitled to a right to family reunification if their application is successful. Continue reading →

In its recent ruling in Egenberger (C-414/16), the Court’s Grand Chamber has redrawn the boundaries of a constitutional problem German courts are rather familiar with: the horizontal application of the right not to be discriminated against in situations coming within the scope of EU law. The case raises two important constitutional issues: firstly, whether the horizontal effect of EU fundamental rights must be direct; and, secondly, how the balance between conflicting fundamental rights should be reached in a private dispute. This post argues that, on the one hand, in Egenberger,the Court offers a methodologically more principled account of the horizontal effect of fundamental rights than its case law has provided to date. On the other hand, its approach towards the balance between religious freedom and non-discrimination is problematic because it does not offer the degree of clarity and guidance that is needed to accommodate horizontal conflicts of rights under the Charter framework. Continue reading →

Long gone are the days when a taxi was the only means of private transport in return for payment to be obtained in our cities. The ridesharing smartphone application provider Uber has shaken up the way in which people book, offer and conceive private rides. One of the most far-reaching and therefore controversial Uber applications is UberPOP. That application enables non-professional individuals (in contrast with UberX, which relies on professional – and often licensed – drivers) to act as remunerated drivers, transporting other private individuals from point A to point B. As UberPOP drivers generally are non-professional drivers making ancillary revenue out of their ridesharing activities, they do not have a taxi or other transport license and are not employed by Uber. That fact has encouraged regulators strictly to limit or even to prohibit UberPOP activities for safety and consumer protection reasons.

A prohibition thus issued in Barcelona gave rise to a first ruling by the Court of Justice on the matter in the Elite Taxi judgment (C-434/15) rendered last December 2017. In some Member States, such as France, the offering of unlicensed transportation activities has even been subject to criminal law sanctions, which led to the Uber France judgment (C-320/16) rendered on 10 April 2018. In both judgments, Uber argued that the national regulations in place were incompatible with EU law and more particularly with the provisions of the e-commerce (Directive 2000/31) and services (Directive 2006/123) Directives. The Court flatly ruled out that possibility, considering Uber to offer services in the field of transport not actually governed by EU secondary legislation. Continue reading →

Many valuable contributions have been written (for example this blog post but also elsewhere, among many others) on the M.A.S. decision (M.A.S. and M.B., case C-42/17 a.k.a. Taricco II) and, more in general, on the Taricco saga. The majority of them, however, focus mainly on the criminal and constitutional law dimensions separately. In this contribution, we focus on these dimensions together: we believe that this decision is equally important for the relationship between the Court of Justice of the EU (CJEU) and the national Constitutional Courts as it is for the hazardous path of a harmonization of the general part of criminal law at EU level.

The reason why these two dimensions are usually examined separately lies on the different background of the scholars concerned. In this blogpost we have done the effort to put together and explain the importance of the M.A.S. decision from the viewpoint of a criminal lawyer and from the one of a (European) constitutional lawyer. To do that, this work will be divided in two main parts: we will firstly look at the relationship between the CJEU and the Italian Constitutional Court (ICC) (in the first part, sections I and II, written by Giovanni Zaccaroni). We will then see whether and how the decision advances the harmonization of criminal law at an EU level (the second part, sections III-V, written by Francesco Rossi). Continue reading →

From North to South, from national governments to the Commission: EU Institutions and Member States are in agreement that a reform of the Economic and Monetary Union (EMU) is high on the political agenda. One aspect of such a reform is the integration of the Fiscal Compact into the EU legal framework, which the Member States committed to in the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG). With a French Government that is pushing for reforms, a German government that is finally in place, and a proposal for a directive drafted by the EU Commission on the table, it is likely that the topic will gain importance.

In three somewhat distinct steps, this post aims to explain the obligation to incorporate the Fiscal Compact into EU law (1.), explore one viable option to do so, which some of the treaty-drafters might have had in mind, namely the Enhanced Cooperation mechanism (2.), and analyse the (rather surprising) Commission proposal on the topic (3.). Continue reading →

This February, the Court of Justice of the European Union delivered a judgment in which, one year after the C-104/16 P Council v Front Polisario judgment, once more the EU’s trade relations with Morocco took centre stage. Whereas in Front Polisario the Court was faced with the question of the validity of the EU-Morocco Association Agreement (AA) and Liberalisation Agreement (LA), this time the Court was tasked with determining the validity of the EU-Morocco Fisheries Partnership Agreement (FPA), the 2013 Protocol thereto and the EU implementing acts in the context of a preliminary ruling procedure requested by the British High Court. The national proceedings were brought by the voluntary organization Western Sahara Campaign UK, which sought to challenge certain British policies and practices implementing the aforementioned legal acts, as far as they pertained to goods originating in and fisheries policy related to Western Sahara. As in Front Polisario, the main issue was the application of these agreements to the territory of and products originating in Western Sahara, a non-self-governing territory to be decolonised in accordance with the principle of self-determination, but considered by Morocco to be an integral part of its sovereign territory (for background, see our Article on T-512/12 Front Polisario v Council).

Given that this is the first request for a preliminary reference concerning the validity of international agreements concluded by the EU and their acts of conclusion, it also raised some new procedural questions, especially concerning the Court’s jurisdiction. In this case, the Court readily accepted that it has jurisdiction to give preliminary rulings on the interpretation and validity of all EU acts, ‘without exception’. This is noteworthy in and of itself, as it firmly establishes the Court’s jurisdiction when it comes to reviewing the EU’s international agreements in light of international law, albeit indirectly in the context of ruling on the validity of the EU act approving the international agreement in question (Judgment paras 48-51). Such jurisdiction is in line with the Court’s recent case-law that provides for the Court’s comprehensive jurisdiction, especially in light of the Court’s finding that the Treaties have created a ‘complete system’ of judicial review entrusted to the Courts of the EU (Rosneft para 66). Continue reading →

Investment Tribunals called upon to resolve intra-EU disputes are getting used to the European Commission showing up at their doorstep to try to convince them to decline jurisdiction. Though the range of arguments is wide and varied depending on the circumstances of the case and the underlying Investment Treaties, the overarching theme is simply that EU Law reigns supreme in relations between Member States and overrides all international law commitments that individual Member States- and the EU itself in the case of the Energy Charter Treaty- have entered into. The Commission has occasionally met with success: in Electrabel, a long learned discussion on the relationship between EU Law and the ECT was concluded with the bombshell that EU law ‘would prevail over the ECT in case of any material inconsistency’ (para. 4.191). Other times, it is summarily dismissed. ‘Should it ever be determined that there existed an inconsistency between the ECT and EU Law’, observed the Tribunal in RREEF Infrastructure, ‘the unqualified obligation in public international law of any arbitration tribunal constituted under the ECT would be to apply the former. This would be the case even were this to be the source of possible detriment to EU law. EU law does not and cannot “trump” public international law.’[i]

The most interesting point about these wide divergences between different Tribunals on rather fundamental points of EU and international law is how little they seem to matter. In both RREEF and Electrabel and numerous other intra-EU cases, the Tribunals disposed of the matter by pointing out that, in casu, there was no relevant material inconsistency, no conflict, no need to rule on matters of EU law, no incompatibility of obligations under different Treaties, and/or nothing that could not be solved by ‘harmonious interpretation.’ It might make sense to think of this Tribunal practice as devising conflicts-rules.

There are good reasons for the Court of Justice not to want to play this game. A case by case analysis of whether a particular award passes muster through national enforcement proceedings, or a Treaty-by-Treaty analysis of whether a particular dispute settlement or applicable law clause is compatible with EU law, is bound to be time consuming and labor-intensive, and will inevitably be unpredictable and lead to legal uncertainty. Continue reading →

The European Law Blog aims to highlight, and comment on, current developments in EU case law and legislation. Our posts are short comments on judgments and legislation and are intended for anyone who wishes to stay informed on EU law. We hope you will enjoy our posts!